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November 16, 2004


One thing that really annoys me about what Wilco says in this interview is that downloading MP3s is not like stealing bread (theyre right that is rivalrous) but then they analogize downloaing music to taking books from the library. It just doesnt work. It might be appealing to justify infringement as something akin to checking out a library book, but because of our copy culture nobody cares if you ever return the book (MP3) back to the library. When was the last time that you checked out a book from the library, did not return the book, had no intentions of ever paying for the book,
and not only did the library just chose not to fine you, but they just let you keep doing the same thing over and over. Doesnt happen. Why? For two reasons: (1) we are so scared of the library police (as opposed to the copyright police)that we just choose to return books to their rightful owners and (2) the library isnt afraid to enforce fines on an 8 year old for overdue property usage because in the context of the library it doesnt violate petty rules of political correctness to penalize minors for stealing the property of another. In this sense I wish our attitudes towards MP3s were a lot more like our attitudes towards library books.

Wilco at one point rationalizes their mentality on the basis of "Im not interested in selling pieces of plastic." Although Im smitten by their altruistic motives, the cynic in me tells me that if they were in the starving artist stage of their career (as most artists are), more than anything they would want to hustle their pieces of plastic so they could afford to keep making pieces of plastic.

Wilco again makes this point by saying "I dont want potential fans to be blocked because the choice to check out our music becomes a financial decision for them." You go Wilco, but dont assume that because your pre-free P2P stage in life made you bundles of cash and now that you are secure you have the right to impose any barriers that may potential prohibit current starving artists from achieving the same success that you now enjoy.

In reply to Tommy, I think starving artists need to be more concerned about the court decision regarding sampling.

When it costs the Beatie Boys $1000 to license a 3-second clip of another song and they still get sued over it, it's hard to see how artists that remix our culture can afford to get started.

Stronger copyright protection generally helps established artists but hinders new artists.

"Stronger copyright protection generally helps established artists but hinders new artists."

That may be true, but isnt the goal of new artists to become established artists? That way, should there be consumer demand for their works, the once starving artists may enjoy a fruit of copyright protection ($). Arguing that there must be a distinction b/w new and established artists in terms of protection of their works ignores the reality that the incentive of all artists whether new or old are the cost recoupment and wealth maximization possibilities that copyright protection provides.

On your other point about sampling - I'm not sure "artists" are "entitled" to use the works of others. You seem to imply that without this ability they wont have the opportunity to become successful. Why dont they just try becoming original like the artist from whom they are ripping once did? In that sense I think the Bridgeport decision is about promoting creativity.

Wilco at one point rationalizes their mentality on the basis of "Im not interested in selling pieces of plastic." Although Im smitten by their altruistic motives, the cynic in me tells me that if they were in the starving artist stage of their career (as most artists are), more than anything they would want to hustle their pieces of plastic so they could afford to keep making pieces of plastic.

Maybe you don't know many real musicians. I personally know quite a few, including two Grammy winning songwriters, a world renowned bluegrass guitarist, and a well respected guitar player for a really famous singer who I'm sure you've all heard of (not going to mention names though). None of the people I am talking about currently makes big bucks from selling shiny discs. In fact, all of them work regular jobs. Sure some of them may work in some capacity in the industry - teaching music, doing some freelance studio work, or even making supplemental income by playing shows and selling CDs (though live performances make a lot more money than CD sales for the VAST majority of performers). NONE of the musicians I know sees music as a way to get rich and sell pieces of plastic.

Maybe it's our greedy law school mindset. Are most of us in it for the personal satisfaction of helping those in need, or because it pays pretty well? Probably the latter. Maybe we aren't the type of people that are particularly well equipped to analyze the motives of people who voluntarily engage in a trade that they KNOW going into it will most probably not result in big money. We certainly understand the perspective of the profit maximizing executive though.

Starving artists don't do art for the money! If they did, they wouldn't be starving - they'd go get a better paying job. In fact, most of them do have other jobs. That's not to say they won't be happy if they suddenly strike it big and get a bunch of cash, but I know a lot of musicians and none of them expect to get rich off it. It's an extremely lucky side effect of doing something they love.

The musicians I know like playing music. Some of them enjoy playing live shows and touring. Most of them sell their own CDs either at shows or through small independent labels. There's no expectation that the CDs are going to make a lot of money or make them big stars. Instead, they are happy if they make a modest amount of money so they can afford to make more music. You were right on that point. But that's the motivation - just wanting to be able to make music.

P2P isn't killing off the small artists who just want enough money to buy a new guitar and write some new songs. Those people make peanuts from CD sales anyway. P2P is hurting the mega-corporations that sell CDs and make fancy music videos. And possibly the small percentage of famous artists that might only be making $2 million this year instead of $2.2 million - though that's debatable too, with touring revenues, endorsements, etc. (all things that tend to increase with more exposure, which P2P might actually help with).

You're confusing the smallest percentage of musicians - the big time stars like Britney Spears, Prince, Metallica - with real musicians. Go pick up the entertainment section of a newspaper and check the live performances this weekend. There will be lots of live music. There will be a few big stars (making big bucks), a few names you've heard of (maybe making a living from it), and a lot of people who you've never heard of. Those people are the typical musicians. They have other jobs. They aren't naive enough to think they're all just in line to be the next big thing. Most of them are just people who like playing music.

This conversation could go on forever but in an attempt to rebut our/my "greedy" law school mindset I suppose I must say something.

My point in short is this - the right of a musician to become wealthy (or even comfortable) is a function of supply and demand that is aided in (large) part by the fact that musicians have the exclusive rights to their works b/c of copyright. It is a legal EXCLUSIVE right granted to them (ostensibly for the promotion of the arts) and quite frankly i dont think for a second (other than by not buying their album or not going to their show) I have the right to dictate their financial success by usurping their right to a limited monopoly.

I agree with you that some (maybe even most) musicians play music for more than just the money. But the fact that there's even it's just a small percentage of musicians out there peddling plastic and making it big is not a rational justification for attempting to level the playing field by imposing your spite of their financial success in order to limit their legal monopoly (kind of the same reason why med mal caps are dumb - why should the govt be able to limit somebodies earning potential?).

Like it or not the reason Brittany Spears is making more money and gaining more of a benefit off of her exlusive right than i.e. Modest Mouse or some other band that to put it quite frankly does not have commercial appeal (or even luck, it doesnt matter) is b/c she has won the "only the strongest shall survive" battle that is free market capitalism. She like all other musicians has an exclusive right to her works, should she be penalized because she has figured out how to use that right in a more profitable way than Mighty Mouse?

I find it hard to believe that the majority of musicians (or "real" musicians as you call them) do not think in the back of my mind Im going to bust my ass: (a) to produce music b/c thats what i enjoy and (b) im going to produce music b/c maybe people will like it and i can one day sip kristal with P Diddy. I find it hard to believe that if one of your friends was approached by one of the big 4 they would say go away I do not want your fantastic publicity, I dont want you to get me on the radio, and I dont want you to make me oodles of money. Im not going to reap the benefits of my copyright b/c that would be to the disadvantage of another artist. They might turn them down but I find it hard to believe its b/c they dont want to reap the rewards that their limited monopoly produces. (or maybe that just the greedy logical mentality speaking again, did i say logical i meant law school mentality)

Copyright protection may full well end up giving record companies a dispraportionate share of the CD sales but i think this argument is appealing b/c people dont realize the broader picture. Why, if that were such a bad thing, dont musicians just say screw you record company X, youre not going to rip me off, Im going out on my own. Im obviously not a musician, but I think bands use record companies just like record companies use bands. Bands know that they will be one up on everyone else by singing with one of the big 4 and that it will provide them with the publicity and hype in order that they can make money off of touring and merchandise. I guess a way to look at it in my humble view is to look at the NBA. Who was the talent? Obviously the players. But who has the ability to market the talent and get fans to watch them? The league/owners. The players need the league/owners and the league/owners need them.

I know you dont agree, but thats my point of view.

p.s. youre right starving artists dont do art for the money - they do art b/c of the possibility that they wont have to starve.

First of all, I would just like to say that the Bridgeport decision is horrible because most artist today sample to some extent. I feel this decision will severely stifle creativity (although some sampling is actually degenerative and should be outlawed).

Second, I want to point out - regardless of how you feel about P2P - some interesting results that P2P has created within the artistic community. We've all heard certain musicians complain that P2P is taking money out of their pocket (Lars, Dr. Dre, etc), and many have been castigated publicly as a result. But recently, there has also been an increase in artists attempting to either push up album release dates, alter their (finished) album after it has been leaked, or use bizzare gimmicks (G-Unit putting a "gold ticket" in one of their first 50,000 CDs sold, with the winner getting to meet them...or something to that effect), all in an effort to increase CD sales. For example, two of my favorite bands, Radiohead and Audioslave, both had albums leaked online before their planned release dates. Both bands then released statements saying that the leaked versions were not the finished product. This may have been the case, but it is possible that the changes were made after the fact. In the case of Radiohead's Hail to the Thief, the changes are barely detectable. In fact, the only major change I noticed was the order of the songs. Radiohead is already established, barely even promote their albums, and generate most of their revenue from extensive touring, so why bother with the alterations? I think the reality is that for any artist signed to a record label, regardless of how mainstream they are, record sales are extremely important. Maybe not in terms of overall revenue, but in terms of exposure, keeping the label happy, booking tour dates, etc, record sales are the key to unlocking that door. Maybe this will change someday, but for now, even lesser known artists are dependent upon CD sales.

My real issue is that I think it's disingenuous to drag the starving artist into this conversation about P2P. That artist doesn't have much to lose in the RIAA/P2P war. It's like the MPAA ads with union workers claiming that their kids will starve if you watch a pirated movie. We know that's just not true. The real parties that stand to lose something are MGM execs, directors, and Ben Affleck. Sure, they made their billions of dollars fair and square in our good ol' capitalist system. That's fine. But lets keep the debate focused on that instead of playing a shell game and trying to switch the real interested parties with a more sympathetic figure (the starving artist/downtrodden laborer).

Artists DO have resentment toward the label system. Actually, one of the most compelling statements on topic comes from Courtney Love, who most of us would say has been a very successful artist. Here's a link. Please read it if you want to see an opinion that I know many musicians agree with. Courtney said all of this stuff back in 2000 when Napster was coming out, and she reserves judgment on whether P2P is good or bad for artists. The point is that it might be a better option than the unpleasant world of major label music contracts. Here is another article from an industry observer backing up the idea that artists don't make money from album sales.

Don't forget that major labels are notorious for trying to get contracts bordering on unconscionable, and using their experience and the "wow" factor to manipulate teenage kids who aren't always saavy businesspeople and don't necessarily have good lawyers. They're just musicians without a lot of money who are excited to be in a record exec's fancy office in L.A.

I'll leave you with my favorite illustration of the distatefulness of record labels, as told to me by an acquaintance who was discussing signing a record deal with a major label. The exec had just offered a deal that amounted to this musician signing away her soul and the rights to every thought that ever went through her head until death, for an absurdly low percentage (we're talking less than 5% SRP - a really bad deal for an artist). Thankfully, this musician knew better... Here's the end of the conversation:

Record exec: "Come on, it's a great deal! It's the same deal Bradley Nowell from Sublime got!"

Musician: "Yeah, and he died a penniless and homeless junkie."

And then she calmly left the office.

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